ENTERPRISE

Lone Property Rights Case Before the Court This Year

Property rights have spent long, dark decades in this country since
the rise of Woodrow Wilson and his "Progressives," 90 years ago.

In the end, the "Progressive" -- or collectivist, or
redistributionist, or socialist ... whatever chameleon colors they've
adopted most recently -- doesn't believe a private person can own
anything, down to and including our own bodies, our children, or the
fruits of our labor.

All these things belong to some mythical "social collectivity," you
see, on whose behalf the current ruling class can seize, transfer, or
re-allocate anything and anyone, from the third of your paycheck you
never see, right down to children pulled out of loving homes and
placed in far-more-dangerous "foster care" because parents resist
pertussis vaccinations or try to take them off their
government-mandated Ritalin.

Of course, America grew great precisely because free citizens were
allowed to work hard and store away their earnings for a rainy day,
investing the surplus in various private enterprises.

The opposite theory is that wiser government "managers" should seize
whatever's needed so press gangs of conscript workers can complete
the new steel mill on time to meet the "five-year plan." And if that
sounds good to you, I understand there are currently plenty of job
openings in many a "workers' paradise," such as scenic downtown
Smolensk.

So champions of restored American property rights -- I among them --
sounded premature hosannas when the U.S. Supreme Court seemed to
finally reverse this erosion, handing down its landmark 1990 decision
in the case Lucas vs. South Carolina Coastal Council.

Lucas owned a building lot on one of the barrier islands off the
coast of South Carolina. Flood control regulations barred him from
actually building anything on it, but the authorities denied they'd
"taken" his property under the Fifth Amendment, since he was still
allowed to hold title ... and pay property taxes. Thus, no one owed
him anything for merely taking away the productive use of his
property.

Until the court spoke, that is. The Lucas decision held there could
indeed be a regulatory "taking," that government had to pay a land
owner "just compensation" as required under the Fifth Amendment, even
if they only "took" the land by passing regulations sufficient to
render it unusable.

"Unfortunately, the Lucas case didn't turn out to be the watershed
that some editorialists and legal commentators predicted," explains
Harold Johnson, an attorney with the Pacific Legal Foundation in
Sacramento. "Regulators and courts have gotten around the rule of
Lucas by, among other strategies, creatively discovering residual
value even in heavily regulated properties."

Three weeks ago, attorneys for PLF traveled to the Supreme Court to
argue the case of 80-year-old Anthony Palazzolo, who for 40 years has
been denied the right to develop 18 acres of salt marsh that he owns
in Westerly, R.I.

"Because he would be permitted to build a single family home on a
small parcel next to the salt marsh, the R.I. Supreme Court refused
to recognize a compensable taking," attorney Johnson explains. "Never
mind that the house would be worth at most $200,000, less than a
tenth the value of the salt marsh area if he could build homes or a
beach club on it."

Mr. Palazzolo is seeking $3.1 million -- or the right to build his
beach club, where there would be calm waters, an 8 p.m. curfew and
"no drunks."

As he looked over the marsh and pond this January, Palazzolo pointed
to nearby cottages and told a reporter for the Providence
Journal-Bulletin: "People did what they wanted around here and
nothing happened. I ask for permission, and I get nowheres."

One technicality the land-grabbers are using in Mr. Palazzolo's case
is that he used to hold the land in the name of a corporate entity.
And although the new development restrictions were put in place after
that corporation bought the property, when he transferred
ownership into his own name that constituted a new "acquisition"; the
new "buyer" should have been aware the restrictions were in place.

"That theory relegates property rights to second-class status,"
answers attorney Johnson. "You wouldn't be barred from challenging a
city government's First Amendment violation merely because the
offending law was on the books when you moved to town and you were
'on notice' of the violation."

Many among the eco-extremists squawk that if the high court holds for
Palazzolo -- a decision is expected this spring -- it could become
prohibitively expensive for bureaucrats to wave their magic wands and
declare vast swatches of the American landscape off limits for
productive use, the better to "protect the habitat of the threatened
yellow mealworm," or whatever.

Well, good. There's a price to be paid for such arrogance, and the
government has no right to impose that price on unwilling victims.
Pay up -- from your constitutionally limited revenues -- or downsize
your rapacious schemes.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas
Review-Journal. Subscribe to his monthly newsletter by sending $72 to
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